Schwartz v. Washington County

342 May 1, 2024 No. 280

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Jordan SCHWARTZ, an individual;

Jonathan Moran, an individual; Serenity Vapors, LLC,

a domestic limited liability company;

Torched Illusions, LLC,

a domestic limited liability company;

Belal Yahya, an individual;

and Hookah Cafe, LLC, dba King’s Hookah Lounge,

a domestic limited liability company,

Plaintiffs-Respondents,

v.

WASHINGTON COUNTY,

a political subdivision of the State of Oregon,

Defendant-Appellant.

Washington County Circuit Court

22CV04836; A179834

Andrew Erwin, Judge.

Argued and submitted March 28, 2024.

John Mansfield argued the cause and filed the brief for

appellant.

Tony L. Aiello, Jr., argued the cause for respondents. Also

on the brief was Tyler Smith & Associates, P.C.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Philip Thoennes, Assistant Attorney

General, filed the brief amicus curiae for State of Oregon.

Steven C. Berman, Lydia Anderson-Dana, Stoll Stoll

Berne Lokting & Shlachter P.C., and Dennis A. Henigan

filed the brief amici curiae for African American Tobacco

Control Leadership Council, American Cancer Society

Cancer Action Network, American Heart Association,

American Lung Association, American Medical Association,

Campaign for Tobacco-Free Kids, Cascade AIDS Project,

Kaiser Permanente, Oregon Coalition of Local Health

Officials, Oregon Medical Association, Oregon Pediatric

Cite as 332 Or App 342 (2024) 343

Society, Parents Against Vaping e-cigarettes, Truth Initiative,

and Upstream Public Health.

Before Tookey, Presiding Judge, Egan, Judge, and DeVore,

Senior Judge.

TOOKEY, P. J.

Reversed and remanded.

344 Schwartz v. Washington County

TOOKEY, P. J.

Defendant Washington County appeals a judgment

permanently enjoining it from enforcing Washington County

Ordinance (WCO) 878, which bans the sale and distribution

of flavored tobacco and flavored synthetic nicotine products

in Washington County. The trial court enjoined WCO 878

because it concluded that WCO 878 is preempted by Oregon’s

statewide scheme for tobacco retail licensure (TRL), ORS

431A.190 to 431A.220.1 On appeal, in its sole assignment of

error, defendant contends that the trial court erred in ruling

that WCO 878 is preempted by Oregon’s scheme for TRL.2

We conclude that WCO 878 is not preempted by

Oregon’s scheme for TRL. Therefore, we reverse and remand.

I. BACKGROUND

Prior to turning to a description of this litigation

and an explanation of why Oregon’s scheme for TRL does not

preempt WCO 878, we provide an overview of that scheme,

Washington County’s authority as a “home rule” county, and

WCO 878.

A. Senate Bill 587 (2021) and TRL in Oregon

In 2021, the Legislative Assembly passed Senate

Bill (SB) 587, which, for the first time, created a statewide

scheme for TRL in Oregon. Oregon’s scheme for TRL is cod-

ified at ORS 431A.190 to 431A.220.

1

ORS 431A.190 to 431A.220 are the codification of Senate Bill (SB) 587

(2021), which was enacted as Oregon Laws 2021, chapter 586. As discussed below,

SB 587 created Oregon’s scheme for TRL. For the most part, the trial court opin-

ion and the parties’ briefing cite sections of SB 587. In this opinion, we refer to the

relevant provisions of the Oregon Revised Statutes.

2

We note that amicus curiae the State of Oregon has filed a brief in support

of defendant, in which it contends that WCO 878 is not preempted.

We further note that amici curiae African American Tobacco Control

Leadership Council, American Cancer Society Cancer Action Network, American

Heart Association, American Lung Association, American Medical Association,

Campaign for Tobacco-Free Kids, Cascade AIDS Project, Kaiser Permanente,

Oregon Coalition of Local Health Officials, Oregon Medical Association, Oregon

Pediatric Society, Parents Against Vaping e-Cigarettes, Truth Initiative, and

Upstream Public Health, have filed a brief in support of defendant, in which they

contend that WCO 878 is not preempted and argue that a ban on the sale of

flavored tobacco and flavored synthetic nicotine products provides residents of

Washington County greater protection against the “harms of flavored tobacco

and nicotine products” than the protection offered by Oregon’s scheme for TRL.

Cite as 332 Or App 342 (2024) 345

The purpose of SB 587 was “to improve enforcement

of local ordinances and rules, state laws and rules and federal

laws and regulations that govern the retail sale of tobacco

products[3] and inhalant delivery systems.” 4 ORS 431A.192.

It aimed to do so by requiring a license or other authori-

zation for a retailer to sell tobacco products and inhalant

delivery systems. See Audio Recording, Senate Committee

on Health Care, SB 587, Mar 1, 2021, at 00:04:50 (comments

of Rep Kathleen Taylor), https://olis.oregonlegislature.gov

(accessed Mar 3, 2024) (explaining that “[w]ithout requiring

a [tobacco retailer] to obtain a license, * * * enforcement of

our existing laws is difficult”).

At the time that SB 587 was enacted, Oregon was in

the minority of states that did not require tobacco retailers

to hold a license to sell tobacco products, and tobacco was

3

ORS 431A.175(1)(b) defines “tobacco products” as:

“(A) Bidis, cigars, cheroots, stogies, periques, granulated, plug cut,

crimp cut, ready rubbed and other smoking tobacco, snuff, snuff flour, cav-

endish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts,

refuse scraps, clippings, cuttings and sweepings of tobacco and other forms of

tobacco, prepared in a manner that makes the tobacco suitable for chewing

or smoking in a pipe or otherwise, or for both chewing and smoking;

“(B) Cigarettes as defined in ORS 323.010 (1); or

“(C) A device that:

“(i) Can be used to deliver tobacco products to a person using the device;

and

“(ii) Has not been approved by the United States Food and Drug

Administration for sale as a tobacco cessation product or for any other ther-

apeutic purpose, if the product is marketed and sold solely for the approved

purpose.”

See ORS 431A.190(5) (providing that for purposes of ORS 431A.190 to

431A.216, “tobacco products” has the meaning given that term in ORS 431A.175);

ORS 431A.218(1)(d) (providing that for purposes of ORS 431A.218, “tobacco prod-

ucts” has the meaning given that term in ORS 431A.175).

4

ORS 431A.175(1)(a)(A) defines “inhalant delivery system,” in part, as:

“(i) A device that can be used to deliver nicotine or cannabinoids in the

form of a vapor or aerosol to a person inhaling from the device; or

“(ii) A component of a device described in this subparagraph or a sub-

stance in any form sold for the purpose of being vaporized or aerosolized by a

device described in this subparagraph, whether the component or substance

is sold separately or is not sold separately.”

See ORS 431A.190(2) (providing that for purposes of ORS 431A.190 to 431A.216,

“inhalant delivery system” has the meaning given that term in ORS 431A.175);

ORS 431A.218(1)(b) (providing that for purposes of ORS 431A.218, “inhalant

delivery system” has the meaning given that term in ORS 431A.175).

346 Schwartz v. Washington County

the only age-restricted product in Oregon that a retailer

did not need a license to sell. Testimony, Senate Committee

on Health Care, SB 587, Mar 1, 2021 (statement of Rachel

Banks, Public Health Director, Oregon Health Authority);5

Audio Recording, Senate Committee on Health Care, SB 587,

Mar 1, 2021, at 00:04:15 (comments of Rep Kathleen Taylor),

https://olis.oregonlegislature.gov (accessed Mar 3, 2024).

Nevertheless, several political subdivisions in Oregon

had enacted ordinances requiring retailers to hold a license

or other authorization issued by the political subdivision in

order to sell tobacco products, although Washington County

did not have such a licensure or authorization scheme in

place. See, e.g., Testimony, Senate Committee on Health Care,

SB 587, Mar 1, 2021 (statement of Rachel Banks) (noting

that “[c]ounties such as Multnomah, Clatsop and Klamath

are enforcing strong tobacco retail licenses”). The result was

that a “patchwork approach of local licensing programs”

was starting to develop throughout Oregon. See Testimony,

Senate Committee on Health Care, SB 587, Mar 1, 2021

(statement of Shawn Miller, Northwest Grocery Association)

(explaining that the Northwest Grocery Association sup-

ported SB 587 because it “has always been concerned with

a patchwork approach of local licensing programs and would

rather have a coordinated state-wide approach versus addi-

tional Counties adopting their own programs”).

During the discussions on SB 587, an issue arose

regarding what to do about the TRL programs in those polit-

ical subdivisions that already had their own TRL programs

if the state was to begin issuing its own licenses for retail

sales under SB 587. Senator Tim Knopp explained that

some of the local TRL programs may “go further than” the

state TRL scheme likely would and recognized that some

5

The legislative history of SB 587 contains conflicting information regard-

ing the precise number of states that did not have a statewide TRL program at

the time SB 587 was under consideration by the Legislative Assembly, but the

majority did already have a statewide licensure program in place. See Testimony,

Senate Committee on Health Care, SB 587, Mar 1, 2021 (statement of Rachel

Banks) (“Oregon is one of only seven states that does not require tobacco retailers

to have a license.”); Testimony, Senate Committee on Health Care, SB 587, Mar 1,

2021 (statement of Ivy Jones, Associate Government Relations Director, Oregon

Medical Association) (“Oregon is one of thirteen states without a statewide licen-

sure [program], and we believe it is time we create one.”).

Cite as 332 Or App 342 (2024) 347

of the political subdivisions with existing TRL programs

“would want to keep those [TRL programs] in place.” Audio

Recording, Senate Committee on Health Care, SB 587, Mar

10, 2021, at 00:45:00 (comments of Sen Tim Knopp), https://

olis.oregonlegislature.gov (accessed Mar 13, 2024). For that

reason, the legislature did not want to “preempt[ ]” those

existing local programs, and it also did not want to require

a retailer licensed to sell in a particular jurisdiction under

a local TRL program also to be required to obtain a state-is-

sued license. E.g., id.; Audio Recording, Senate Committee

on Health Care, SB 587, Mar 17, 2021, at 00:05:20 (com-

ments of Rep Kathleen Taylor), https://olis.oregonlegisla-

ture.gov (accessed Mar 13, 2024) (explaining that it was “not

the intent of the bill to stack multiple licenses on retailers”).

The result of those discussions was the licensure

scheme that was enacted by the legislature and codified at

ORS 431A.194, ORS 431A.220, ORS 431A.198, and ORS

431A.218, which, as explained below, includes provisions

that permit cities and local public health authorities to

continue their licensing programs if those programs were

in place on or before January 1, 2021, and, in those juris-

dictions, allows retailers to sell tobacco products without a

state-issued license if they have a license or other authoriza-

tion issued by the jurisdiction.

ORS 431A.194 prohibits the retail sale of a tobacco

product or an inhalant delivery system from any premises

that is not licensed under either ORS 431A.198 or ORS

431A.220, providing:

“A person may not make a retail sale of a tobacco prod-

uct or an inhalant delivery system at or from a premises

located in this state unless the person sells the tobacco

product or inhalant delivery system at or from a premises

licensed or otherwise authorized under ORS 431A.198 or

431A.220.”

ORS 431A.220 provides that cities and local pub-

lic health authorities that had a TRL program for sales of

tobacco products and inhalant delivery systems prior to

January 1, 2021, may continue to run and enforce those

TRL programs:

348 Schwartz v. Washington County

“A city or local public health authority that, on or before

January 1, 2021, and pursuant to an ordinance adopted

by the governing body of the city or local public health

authority, enforced standards described in ORS 431A.218

(2)(a) and required that a person that makes retail sales of

tobacco products or inhalant delivery systems in an area

subject to the jurisdiction of the city or local public health

authority hold a license or other authorization issued by the

city or local public health authority may continue to enforce

the standards and require the license or other authoriza-

tion on and after January 1, 2022.”

However, ORS 431A.218(7) prohibits cities or local

public health authorities from requiring “a person that

makes retail sales of tobacco products or inhalant delivery

systems to hold a license or other authorization issued by

the city or local public health authority in addition to [a]

license issued” by the state under ORS 431A.198, “except as

provided by ORS 431A.220”—that is, unless the local licen-

sure or authorization program was in place on or before

January 1, 2021.

Finally, ORS 431A.198 provides for retail licenses

for tobacco sales issued by the Department of Revenue

(DOR). It requires the DOR to issue a license when certain

circumstances are met, but also provides that the DOR can-

not require a retailer to have a DOR-issued license to sell

tobacco products or inhalant delivery systems when the

retailer has a license or other authorization issued by a city

or local public health authority pursuant to ORS 431A.220:

“(1) Except as provided in subsection (8) of this sec-

tion, the Department of Revenue shall issue licenses to,

and annually renew licenses for, a person that makes retail

sales of tobacco products or inhalant delivery systems at

qualified premises.

“(2) To be qualified for licensure under this section, a

premises:

“(a) Must be a premises that is fixed and permanent;

“(b) May not be located in an area that is zoned exclu-

sively for residential use; and

“(c) Must meet any qualification for engaging in

the retail sale of tobacco products and inhalant delivery

Cite as 332 Or App 342 (2024) 349

systems enacted as an ordinance by the governing body of a

local public health authority under ORS 431A.218, provided

that the department has knowledge of the qualification pur-

suant to an agreement entered into under ORS 431A.212.

“* * * * *

“(8) The department may not require a person that

makes retail sales of tobacco products or inhalant delivery

systems to obtain a license under this section if the person

holds a license or other authorization issued by a city or

local public health authority pursuant to ORS 431A.220.”

Thus, under ORS 431A.194, ORS 431A.220, ORS

431A.198, and ORS 431A.218, a retailer is required to be

licensed or authorized to sell tobacco products and inhalant

delivery systems by a political subdivision that had a licen-

sure or authorization system in place prior to January 1,

2021, or by the state, but not by both, see Testimony, Senate

Committee on Health Care, SB 587, Mar 1, 2021 (statement

of Shawn Miller, Northwest Grocery Association) (“The bill

allows Counties to continue their programs but would not

layer the statewide license on top of the local license.”); cities

and local public health authorities cannot require retailers

to obtain a license issued by the city or local public health

authority if a TRL program was not in place requiring such

license or authorization prior to January 1, 2021; and, where

a license or other authorization was required to sell tobacco

products in a city or county on or before January 1, 2021,

pursuant to a local law, the DOR cannot require a state-is-

sued license to sell tobacco products or inhalant delivery

systems in that jurisdiction.

Additionally, in defining the respective roles and

responsibilities of the state and political subdivisions,

Oregon’s scheme for TRL contains a provision expressly

allowing the “governing body of a local public health author-

ity” to enforce “standards for regulating the retail sale of

tobacco products and inhalant delivery systems” in addition

to those imposed by state law.6 Specifically, as relevant, ORS

431A.218(2) provides:

6

ORS 431A.218(1)(a) defines “governing body of a local public health author-

ity” with reference to ORS 431.003, which defines it to mean, among other things,

the “governing body of a county.”

350 Schwartz v. Washington County

“Each local public health authority may:

“(a) Enforce, pursuant to an ordinance enacted by the

governing body of the local public health authority, stan-

dards for regulating the retail sale of tobacco products and

inhalant delivery systems for purposes related to public

health and safety in addition to the standards described

in paragraph (b) of this subsection, including qualifications

for engaging in the retail sale of tobacco products or inhal-

ant delivery systems that are in addition to the qualifica-

tions described in ORS 431A.198;

“(b)(A) Administer and enforce standards established

by state law or rule relating to the regulation of the retail

sale of tobacco products and inhalant delivery systems for

purposes related to public health and safety if the local

public health authority and the Oregon Health Authority

enter into an agreement pursuant to ORS 190.110[.]”

(Emphases added.)

Further, ORS 431A.218(4) permits local public

health authorities to “impose a civil penalty not to exceed

$5,000 on a business that engages in the retail sale of

tobacco products or inhalant delivery systems for violating

a standard described in subsection (2).”

As SB 587 worked its way through the legislative pro-

cess, it received support from various groups that expressed

their support because the bill was largely understood to not

prevent political subdivisions from creating additional reg-

ulations regarding tobacco products and inhalant delivery

systems, as evinced by ORS 431A.218(2)(a). For example,

Rachel Banks, Public Health Director at the Oregon Health

Authority, testified in support of SB 587, and explained

that “a strong tobacco license system does not preempt local

governments from enacting stronger, tailored policies that

reflect community needs and values” and that SB 587 cre-

ates an “opportunity [that] can be expanded through local

action that is more protective and targets health inequities.”

Testimony, Senate Committee on Health Care, SB 587, Mar

1, 2021 (statement of Rachel Banks (emphasis added)). Gwyn

Ashcom, the Tobacco Prevention Coordinator for Washington

County Public Health, testified that Washington County

supported SB 587, which “ensure[d] local public health can

Cite as 332 Or App 342 (2024) 351

pass stronger time, place, manner requirements, and enforce-

ment mechanisms.” Testimony, Senate Committee on Health

Care, SB 587, Mar 1, 2021 (statement of Gwyn Ashcom

(emphasis added)); see also Testimony, Senate Committee on

Health Care, SB 587, Mar 1, 2021 (statement of Ivy Jones,

Associate Government Relations Director, Oregon Medical

Association) (“SB 587 will work to hold retailers accountable

and create a statewide program, while also allowing for local

jurisdictions to have flexibility.”).

Indeed, Ashcom specifically stated that, even if

SB 587 was enacted, Washington County intended to move

forward with its own ordinance which would include addi-

tional “protective strategies,” including regulation of fla-

vored tobacco products—specifically, limiting the sale of

those products to “establishments that are 21 and over”—

and prohibiting price promotions. Audio Recording, Senate

Committee on Health Care, SB 587, Mar 1, 2021, at 00:46:25

(comments of Gwyn Ashcom), https://olis.oregonlegislature.

gov (accessed Apr 2, 2024). That is, Washington County

intended to adopt an ordinance regulating retail sales of

tobacco products even if SB 587 was enacted and retailers

obtained a state issued license.

We also note, however, that there is some testimony

in the legislative record that could be read to demonstrate

an understanding that SB 587 would prevent regulation of

the sale of tobacco products by local governments when a

state license had been issued; in other words, when an entity

had obtained a state issued license, they could not also be

regulated by local governments. See Testimony, Senate

Committee on Health Care, SB 587, Mar 1, 2021 (statement

of Shawn Miller, Northwest Grocery Association) (“[B]usi-

nesses would not be regulated by both State and local enti-

ties under the passage of SB 587.”); Audio Recording, Senate

Committee on Health Care, SB 587, Mar 1, 2021, at 00:37:40

(comments of Shawn Miller), https://olis.oregonlegislature.

gov (accessed Mar 13, 2024) (stating SB 587 is a “responsible

way to look at and prevent underage access to tobacco” and a

“better approach than looking at banning different products

or banning locations * * * and it makes it statewide”).

352 Schwartz v. Washington County

Ultimately, as enacted, SB 587 did contain a pro-

vision expressly preempting cities and local public health

authorities from adopting ordinances that prohibit “a prem-

ises that makes retail sales of tobacco products or inhalant

delivery systems from being located at the same address as

a pharmacy,” though cities and local public health author-

ities can continue to enforce such ordinances if the ordi-

nances had been adopted prior to September 25, 2021. ORS

431A.218(6); see also Testimony, Senate Committee on Health

Care, SB 587, Mar 1, 2021 (statement of Shawn Miller) (“[A]

dvocates at the County level have pushed extreme license

restrictions such as banning tobacco sales of locations that

have a pharmacy. * * * Senate Bill 587 preempts these local

pharmacy restrictions.”). But that pharmacy co-location pre-

emption in ORS 431A.218 was, at least as understood by

the Oregon Coalition of Local Health Officials and County

Commissioners, which supported the SB 587, an exception

to SB 587’s otherwise non-preemptive approach to local reg-

ulation. See Testimony, Senate Committee on Health Care,

SB 587, Mar 1, 2021 (statement of Oregon Coalition of Local

Health Officials and County Commissioners) (“[Oregon

Coalition of Local Health Officials] and the Counties have

agreed to one preemption in the bill. While local public

health and local governments are usually very opposed to

preemption we have agreed to this one as a compromise to

pass this bill this session. We would not support another

preemption that further restricts local public health author-

ities from regulating the time, place, and manner in which

tobacco products, including e-cigarettes, are sold.”).

B. Washington County’s Authority as a Home Rule County

In 1958, Oregon voters approved a constitutional

amendment allowing counties to adopt a home rule char-

ter.7 As amended, Article VI, section 10, of the Oregon

Constitution provides, in pertinent part:

“The Legislative Assembly shall provide by law a method

whereby the legal voters of any county, by majority vote of

7

In the United States, “home rule” generally means an arrangement under

which units of local government are “permitted to frame their own charters and

regulate their local affairs.” Orval Etter, County Home Rule in Oregon, 46 Or L

Rev 251, 252 (1967) (internal quotation marks omitted).

Cite as 332 Or App 342 (2024) 353

such voters voting thereon at any legally called election,

may adopt, amend, revise or repeal a county charter. A

county charter may provide for the exercise by the county of

authority over matters of county concern.”8

(Emphasis added.)

In 1962, Washington County adopted a home rule

charter that provides it with “authority over matters of

County concern, to the full extent granted or allowed by

the Oregon Constitution and laws of the State.” Washington

County Charter, ch II, § 20.

We note that, in addition to the preemption issue

that is now before us, plaintiffs’ complaint alleged that

WCO 878 violated Article VI, section 10, of the Oregon

Constitution, because, in plaintiffs’ view, “[i]t is a matter of

state concern, and not county concern, whether to prohibit

or permit the sale of products for which one is required to

obtain a license under SB 587.” The trial court dismissed

that claim on the merits, and plaintiffs have not assigned

error to that ruling on appeal. Thus, for purposes of this

appeal, we assume that, absent preemption, the enactment

of WCO 878 was a valid exercise of Washington County’s

home rule authority under its charter.

C. WCO 878

On November 2, 2021, the Board of Commissioners

of Washington County, adopted WCO 878, which is

entitled, “An ordinance to Prohibit Flavored Tobacco,

Flavored Synthetic Nicotine, Prohibiting Coupon and Price

Promotions, and Repealing Ordinance 599.” In WCO 878,

the Board of Commissioners stated the finding, among oth-

ers that it expressed, that “youth tobacco use is increasing

in Washington County and the tobacco industry continues

to use strategies that target child including the advent of

new products, like flavored products, synthetic nicotine and

inhalant delivery systems (vape products).”

8

Additionally, in 1973, the legislature enacted ORS 203.035(1), which cur-

rently provides that “the governing body or the electors of a county may by ordi-

nance exercise authority within the county over matters of county concern, to

the fullest extent allowed by Constitutions and laws of the United States and of

this state.” That statute “obliterate[d] most distinctions between the powers of

general law counties and home rule counties.” Allison v. Washington County, 24

Or App 571, 581, 548 P2d 188 (1976).

354 Schwartz v. Washington County

WCO 878 provides, as relevant here, that in

Washington County:

“No person shall sell, offer for sale, or otherwise dis-

tribute any flavored tobacco product or flavored synthetic

nicotine product.”

WCO 878, Exhibit A, 2.30(B).

WCO 878 defines “flavored product,” in part, as:

“Any synthetic nicotine product or tobacco product that

contains a taste or smell, other than the taste or smell of

tobacco, that is distinguishable by an ordinary consumer

either prior to or during the consumption of the product,

including, but not limited to, any taste or smell relating

to chocolate, cocoa, menthol, mint, wintergreen, vanilla,

honey, molasses, fruit, or any candy, dessert, alcoholic bev-

erage, herb, or spice.”9

WCO 878, Exhibit A, 2.20(B).

D. The Instant Litigation

On April 29, 2022, plaintiffs—businesses with

locations in Washington county and owners of those busi-

nesses—filed a complaint in the Washington County Circuit

Court seeking declaratory and injunctive relief. Plaintiffs’

complaint alleged that WCO 878 is preempted by Oregon’s

scheme for TRL, i.e., ORS 431A.190 to 431A.220, and

sought an injunction against defendant enforcing WCO 878.

Plaintiffs’ complaint also alleged that WCO 878 “cannot

apply to incorporated cities within Washington County.”

On what the trial court treated as cross-motions for

summary judgment, the trial court concluded that WCO 878

is preempted by state law and enjoined its enforcement. In

light of that ruling, the trial court dismissed as moot plain-

tiffs’ claim that WCO 878 could not apply to incorporated

cities within Washington County.

Defendant appeals the resulting judgment.10

9

Excluded from the definition of “flavored product” in WCO 878 is “any product

that has been approved by the United States Food and Drug Administration for sale

as a tobacco cessation product or for any other therapeutic purpose if the product is

marketed and sold solely for the approved purpose.” WCO 878, Exhibit A, 2.20(B).

10

Plaintiffs’ complaint also alleged that WCO 878 violated Article I, section

20, of the Oregon Constitution and that it was “arbitrary and capricious.” As with

the Article VI, section 10, claim, discussed above, the trial court dismissed those

Cite as 332 Or App 342 (2024) 355

II. ANALYSIS

On appeal, in its sole assignment of error, defendant

contends that the trial court erred in concluding that WCO

878 is preempted by Oregon’s scheme for TRL. Plaintiffs

disagree; they contend that the trial court was “correct in

ruling that Senate Bill 587” preempted WCO 878.

“The analytical process for determining whether

state law preempts a local law in Oregon is well established.”

Owen v. City of Portland, 368 Or 661, 667, 497 P3d 1216

(2021). The question is whether “a local law is ‘incompatible’

with state law, ‘either [1] because both cannot operate con-

currently or [2] because the legislature meant its law to be

exclusive.’ ” Id. (quoting La Grande/Astoria v. PERB, 281 Or

137, 148, 576 P2d 1204, aff’d on reh’g, 284 Or 173, 586 P2d

765 (1978)). We understand plaintiffs to contend that WCO

878 is preempted for both reasons.

A. The Legislature Did Not Intend for SB 587 to be Exclusive

We first turn to whether the “legislature meant its

law to be exclusive”; that “boils down to whether the legis-

lature ‘unambiguously expressed its intent’ to preempt laws

like the ordinance.” Owen, 368 Or at 668 (quoting Rogue

Valley Sewer Services v. City of Phoenix, 357 Or 437, 454,

353 P3d 581 (2015)). Put another way, “we assume legisla-

ture does not mean to displace local civil or administrative

regulation of local conditions by a statewide law unless that

intention is apparent.” Rogue Valley Sewer Services, 357 Or

at 450 (internal quotation marks omitted). As is the case

in other contexts, “we ascertain the intentions of the legis-

lature by examining the text of the statute in its context,

along with any relevant legislative history, and, if neces-

sary, relevant canons of statutory construction.” Board of

Cty. Comm. of Columbia Cty. v. Rosenblum, 324 Or App 221,

239, 526 P3d 798 (2023).

At the outset, “we note that, when the legisla-

ture wishes to preempt local government regulation in

claims on the merits, and plaintiffs have not assigned error to those rulings. Nor

have plaintiffs assigned error to the trial court’s ruling dismissing their claim

concerning application of WCO 878 to incorporated cities within Washington

County as moot.

356 Schwartz v. Washington County

a particular field, it knows how clearly to do so.” AT&T

Communications v. City of Eugene, 177 Or App 379, 394, 35

P3d 1029 (2001), rev den, 334 Or 491 (2002); see, e.g., ORS

166.170(1) (“Except as expressly authorized by state stat-

ute, the authority to regulate in any matter whatsoever the

sale, acquisition, transfer, ownership, possession, storage,

transportation or use of firearms or any element relating

to firearms and components thereof, including ammunition,

is vested solely in the Legislative Assembly.”); ORS 801.038

(“A city, county or other local government may not enact or

enforce any charter provision, ordinance, resolution or other

provision regulating the use of cellular telephones in motor

vehicles.”).

As indicated above, SB 587 contained certain provi-

sions preempting local governments from regulating aspects

of the sale of tobacco products and inhalant delivery sys-

tems. ORS 431A.218(6)(a) (prohibiting cities and local public

health authorities from adopting ordinances that prohibit

“a premises that makes retail sales of tobacco products or

inhalant delivery systems from being located at the same

address as a pharmacy”); ORS 431A.218(7) (prohibiting

cities and local public health authorities from requiring a

license in addition to a license issued under ORS 431A.218,

except as provided by ORS 431A.220, which, as noted, pro-

vides that cities and local public health authorities that had

a TRL program for sales of tobacco products and inhalant

delivery systems prior to January 1, 2021, may continue to

run and enforce those TRL programs).

But Oregon’s scheme for TRL does not contain lan-

guage indicating that the legislature wished to entirely pre-

empt local governments from regulating tobacco and syn-

thetic nicotine products. To the contrary, as set forth above,

ORS 431A.218(2)(a) expressly allows “the governing body of

the local public health authority” to enforce ordinances that

set “standards for regulating the retail sale of tobacco prod-

ucts and inhalant delivery systems for purposes related to

public health and safety in addition to the standards” pre-

scribed by state law. (Emphasis added.)

And that is what Washington County did with its

prohibition on “flavored tobacco” sales set forth in WCO

Cite as 332 Or App 342 (2024) 357

878—which we understand to largely amount to a restric-

tion on certain ingredients. See Webster’s Third New Int’l

Dictionary 2223 (unabridged ed 2002) (“standard” can

mean, among other things, “something that is established

by authority * * * as a model or example to be followed” and

“a definite level or degree of quality that is proper and ade-

quate for a specific purpose”). That is, WCO 878 is a stan-

dard as authorized by ORS 431A.218(2)(a).

If the legislature had intended for SB 587 to divest

political subdivisions of any ability to regulate tobacco

products, we can see no purpose in including the provision

in ORS 431A.218(6)(a) prohibiting cities and local public

health authorities from adopting ordinances that prohibit

a premises that makes retail sales of tobacco products from

being located at the same address as a pharmacy. State v.

Stamper, 197 Or App 413, 418, 106 P3d 172, rev den, 339

Or 230 (2005) (“[W]e assume that the legislature did not

intend any portion of its enactments to be meaningless sur-

plusage.”). That provision would have been surplusage, and

we do not think it is; it shows that the legislature thought

about preemption, and acted where it thought action was

necessary.

The understanding that the legislature did not

intend to preempt local government regulation of tobacco

and nicotine product sales in enacting SB 587 is also sup-

ported by the legislative history of that bill as set forth

above, which, we think, reflects an understanding that SB

587, although intended to prevent a “patchwork quilt” of

licensure requirements, was not intended to preempt local

governments from “enacting stronger, tailored policies that

reflect community needs.” Testimony, Senate Committee

on Health Care, SB 587, Mar 1, 2021 (statement of Rachel

Banks); see also, e.g., Testimony, Senate Committee on

Health Care, SB 587, Mar 1, 2021 (statement of Gwyn

Ashcom). As described above, the limited preemptive effect

of SB 587 was discussed during the hearings on SB 587.

Further, as discussed above, although there was

some testimony in the legislative history that could be

read to demonstrate an understanding that SB 587 would

prevent regulation of the sale of tobacco products by local

358 Schwartz v. Washington County

governments when a state license had been issued, e.g.,

Testimony, Senate Committee on Health Care, SB 587, Mar

1, 2021 (statement of Shawn Miller, Northwest Grocery

Association), it appears to us that that understanding was,

at most, a minority perspective, and it is inconsistent with

the plain text of ORS 431A.218(2)(a), which expressly allows

for the adoption and enforcement of local ordinances which

set “standards for regulating the retail sale of tobacco prod-

ucts * * * in addition to the standards” prescribed by state

law. State v. Kelly, 229 Or App 461, 466, 211 P3d 932,

rev den, 347 Or 446 (2009) (“Cherry-picked quotations from

single legislators or of nonlegislator witnesses, are likely to

be given little weight, as the likelihood that such scraps of

legislative history represent the views of the institution as a

whole is slim.”); Suchi v. SAIF, 238 Or App 48, 55, 241 P3d

1174 (2010), rev den, 350 Or 231 (2011) (“Even assuming that

the legislative history supported claimant’s interpretation,

we are required not to construe a statute in a way that is

inconsistent with its plain text.”).

For those reasons, in our view, the legislature did

not “unambiguously express[ ] its intent to preempt laws

like the ordinance.” Owen, 368 Or at 668 (internal quotation

marks omitted). We thus conclude that legislature did not

mean “for its law to be exclusive.” Id. at 667 (internal quota-

tion marks omitted).

B. WCO 878 Can Operate Concurrently with ORS 431A.190

to 431A.220

We turn to the question whether WCO 878—or at

least the prohibition on the sale of flavored tobacco and fla-

vored synthetic nicotine products contained therein—is pre-

empted because it “cannot operate concurrently” with ORS

431A.190 to 431A.220. Similar to our conclusion above, we

conclude that WCO 878 it is not so preempted.

We have explained that “[a] local ordinance is not

incompatible with state law simply because it imposes

greater requirements than does the state.” Thunderbird

Mobile Club v. City of Wilsonville, 234 Or App 457, 474, 228

P3d 650, rev den, 348 Or 524 (2010) (internal quotation

marks omitted). Instead, “a local law is preempted only to

Cite as 332 Or App 342 (2024) 359

the extent that it ‘cannot operate concurrently’ with state

law, i.e., the operation of local law makes it impossible to

comply with a state statute.” Id.; see also Rogue Valley Sewer

Services, 357 Or at 455 (citing Thunderbird Mobile Club, 234

Or App at 474, for that proposition).

As described above, ORS 431A.190 to ORS 431A.220

provide for a statewide TRL scheme in Oregon. That scheme

prohibits the “retail sale of a tobacco product or an inhal-

ant delivery system at or from a premises located in this

state unless the person sells the tobacco product or inhal-

ant delivery system at or from a premises licensed or other-

wise authorized under ORS 431A.198 [providing for licenses

issued by DOR] or ORS 431A.220 [providing for licenses or

other authorization issued by political subdivisions].” In con-

trast, WCO 878 prohibits the sale and distribution of “any

flavored tobacco product or flavored synthetic nicotine prod-

uct” in Washington County.

WCO 878 is not preempted merely because it prohib-

its the sale of a product which is allowed, in certain circum-

stances, to be sold under Oregon’s scheme for TRL. Oregon

Restaurant Assn. v. City of Corvallis, 166 Or App 506, 511,

999 P2d 518 (2000) (“[W]e are reluctant to assume that the

legislature, in adopting statewide standards, intended to

prohibit a locality from requiring more stringent limitations

within its particular jurisdiction.”); see also Thunderbird

Mobile Club, 234 Or App at 460 (concluding ordinances

requiring owners of mobile home parks to obtain a closure

permit from the city and to compensate displaced tenants

were not preempted by the Oregon Residential Landlord

and Tenant Act, even though “the ordinances impose[d]

greater requirements on owners of mobile home parks than

mandated by the Residential Landlord and Tenant Act”).

Because a retailer can comply with both Oregon’s

scheme for TRL and WCO 878’s prohibition on the sale and

distribution of flavored tobacco and flavored synthetic nic-

otine products in Washington County by not selling those

products in Washington County, compliance with both WCO

878 and ORS 431A.190 to 431A.220 is not “impossible”; in

other words, because Oregon’s scheme for TRL merely per-

mits license holders to sell tobacco products and inhalant

360 Schwartz v. Washington County

delivery systems, but does not require tobacco retailers to

sell any particular type of tobacco product or inhalant deliv-

ery system, Oregon’s scheme for TRL can operate concur-

rently with WCO 878, which prohibits the sale of a certain

type of tobacco and nicotine product.

On appeal, plaintiffs point to a different test for

preemption than we apply in this opinion: They contend

that preemption of a local ordinance occurs “when a statute

permits actions that [the] ordinance prohibits, or prohibits

actions that [the] ordinance permits.” The difficulty with

plaintiffs’ argument is that, as explained in Thunderbird

Mobile Club, that test is the test that “applies to the pre-

emption of local criminal laws by a state criminal statute.”

234 Or App at 475 (so noting, and explaining that the “pre-

emptive effect of a state criminal statute is determined by a

different test than the * * * standards for preemption of civil

regulations”). That test is not applicable here.

III. CONCLUSION

In sum, we conclude that the trial court erred when

it concluded that WCO 878 is preempted by ORS 431A.190

to 431A.220.

Reversed and remanded.